Saturday, July 19, 2008

Governor O'Malley's response to the uncovering of the Ehrlich administration's Free State Stasi sounds good upon first read. However, upon closer inspection, it may still leave unanswered just what kind of "intelligence gathering" is permissible under the O'Malley administration.The Governor's office released a statement consisting of two paragraphs. The first paragraph sounded the right notes:

"While these events happened in 2005 and 2006 under the previous administration, the Maryland State Police, under the O'Malley-Brown Administration, does not and will not use public resources to target or monitor peaceful activities where Maryland citizens are exercising their First Amendment rights."

He could have ended his statement there. Unfortunately, there was apparently a need for a second paragraph:

"The State Police and other law enforcement agencies have an obligation to take seriously and investigate all potential threats to public safety consistent with state and federal law, including the Criminal Intelligence Systems Operating Policies contained at 28 Code of Federal Regulations Part 23. But where there is no evidence of a potential public threat, illegal activity or criminal wrongdoing, all investigatory or intelligence gathering activities shall cease."

This raises questions that I was hoping would have been put to rest.

The first paragraph says that the Maryland State Police does not monitor and target peaceful activities protected by the First Amendment. However, the second paragraph says that the State Police and other law enforcement agencies investigate potential threats etc. That begs the question: Since the first paragraph is explicitly limited to the State Police, is there a part of the state government other than the State Police that "use[s] public resources to target or monitor peaceful activities where Maryland citizens are exercising their First Amendment rights"? Why was the statement written to limit the coverage of the first paragraph to the State Police, while the rest of the statement covers the entire law enforcement and intelligence gathering apparatus of the executive branch?

Another problem raised by the second paragraph is its use of the phrase "consistent with state and federal law." The problem is that the State Police clearly believed the activities they were engaged in were consistent with state and federal law. Without a clear statement that Governor O'Malley believes that the political spying revealed by the ACLU was illegal, the statement his office released might say nothing about the very activities that prompted its release.

Over the past several years, especially in response to 9/11, we have seen such an erosion of commitment to the principles of the First Amendment that I find it difficult to simply give the executive the benefit of the doubt.

I look forward to information from the governor's office that would allay my concerns.